Federal Court. Brennan J stated the tripartite test in Mabo (No 2) for determining a person's Aboriginality. That test was adopted in Love in the context of determining whether a person is an alien within the meaning of the Constitution. For the purposes of applying the 2nd and 3rd limbs of that test, can a person "be found to be an Aboriginal Australian through mutual recognition in a different society or people than the one from which he or she has descended biologically", in the absence of evidence of the laws and customs of that different society, "including particularly in relation to the existence or process of any mechanism of 'cultural adoption'"? Does the indigenous society or people have to "exist today for a biological descendent to be able to establish that he or she is not an alien"?
The questions to the Federal Court (FCA) were as follows:
Question 1: For the purposes of determining whether a person is an alien within the meaning of the Constitution by applying the 2nd and 3rd limbs of the tri-partite test stated by Brennan J in Mabo (No 2) and adopted in Love, can a person "be found to be an Aboriginal Australian through mutual recognition in a different society or people than the one from which he or she has descended biologically", in the absence of evidence before the court of the laws and customs of that different society, "including particularly in relation to the existence or process of any mechanism of 'cultural adoption'"?
Question 2: Does the indigenous society or people have to "exist today for a biological descendent to be able to establish that he or she is not an alien"?
The FCA answered those questions as follows: